Breen v. Kelly

• Decision Date: 13 February 1891
• Citation: 45 Minn. 352,47 N.W. 1067
• Parties: BREEN ET AL. v KELLY.
• Court: Minnesota Supreme Court

45 Minn. 352

47 N.W. 1067

BREEN ET AL.vKELLY.

Supreme Court of Minnesota.

Feb. 13, 1891.

(Syllabus by the Court.)

A county has not, unless expressly authorized by law, power to take a bond for the security or benefit of third persons, and such a bond, though voluntarily executed, is void.

Appeal from district court, Ramsey county; KERR, Judge.

W. S. Moore, for appellant.

Munn & Boyeson, for respondent.

GILFILLAN, C. J.

The action is upon a bond purporting to be executed by the defendants to the county of Hennepin “for the use of all persons who may do work or furnish materials pursuant to the contract for the erection of the foundations of Lake-Street bridge, *** to be paid to the said county of Hennepin or assigns, for the said use,” the condition of which is that the contractor “shall save and secure the county of Hennepin harmless, and shall pay all just claims for all work done, and to be done, and all materials furnished and to be furnished, pursuant to said contract, and in the execution of the work therein provided for, as they shall become due hereafter.” The claim in the complaint is for work done and materials furnished by plaintiff's testate for the contractor in the work mentioned in the bond. So far as the bond was for the security of the county alone, the plaintiff can have no concern in it. He must base his claim on it upon the theory that it was a contract made by the county for his testate's benefit. As such, the appellant claims that the county had no authority or capacity to make it. When a municipal corporation has authority to do or cause to be done certain work, and make contracts for the doing of the work, it has, probably, implied authority to take security for and on account of the doing of the work,-authority to protect itself in the premises; for it may be presumed the legislature intended it to have that power, as incidental to the power expressly granted. But no power to take security for third persons, nor capacity to make contracts expressly for their benefit, can be implied. To enable a municipal corporation to take such security or make such contracts, it must have direct authority from the legislature, the source of all its powers. No such power is granted to the county of Hennepin by the act authorizing the work mentioned in the bond; none is to be found in the general law granting powers to counties. The plaintiff can recover on the bond, his testate not being a party to it, only as upon a contract made for his benefit between parties having...